No. IV. 13 Eliz. c. 5. IV. Provided always, and be it further enacted by the authority aforesaid, That whereas sundry common recoveries of lands tenements and hereditaments have heretofore been had, and hereafter may be had against tenant in tail or other tenant of the freehold, the reversion or remainder, or the right of reversion or remainder, then being in any other person or persons; that every such common recovery heretofore Common Recohad and hereafter to be had, of any lands tenements or hereditaments, veries against shall, as touching such person and persons which then had any remainder Tenants of or reversion, or right of remainder or reversion, and against the heirs of Freehold. every of them, stand remain and be of such like force and effect, and of none other, as the same should have been if this Act had never been had ne made. V. Provided always, and be it further enacted by the authority afore- Making an Essaid, That this Act or any thing therein contained shall not extend to tate whereby a make void any estate or conveyance, by reason whereof any person or voucher may persons shall use any voucher in any writ of Formedon, now depending be used in a or hereafter to be depending, but that all and every such vouchers in any Formedon. writ of Formedon shall stand and be in like force and effect as if this Act had never been had ne made; any thing before in this Act contained to the contrary notwithstanding. VI. Provided also, and be it enacted by the authority aforesaid, That Estates made this Act or any thing therein contained shall not extend to any estate upon good or interest in lands tenements hereditaments leases rents commons consideration, profits goods or chattels, had made conveyed or assured, or hereafter to and bona fide. be had made conveyed or assured, which estate or interest is or shall be upon good consideration and bona fide lawfully conveyed or assured to any person or persons or bodies politick or corporate not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin fraud or collusion as is aforesaid; any thing before mentioned to the contrary hereof notwithstanding. VII. This Act to endure unto the end of the first session of the next Parliament. 50 Ed. 3, c. 6. 2 R. 2, Stat. 2, c. 3. 3 H. 7, c. 4. Made perpetual by 29 Eliz. c. 5. See 27 Eliz. c. 4. [ No. V. ] 13 Elizabeth, c. 10.-Fraudulent Deeds by Spiritual Persons, to defeat their Successors of Remedy for Dilapidations, shall be void. It provides a remedy for the successor against the predecessor having made a fraudulent gift to defeat him for dilapidations. It prescribes what conveyances and for what time spiritual persons may make of their lands, tithes, &c. That no new lease shall be made unless the first expires, &c. within three years, &c. See 14 Eliz. c. 11, s. 17, &c. [See the next Class.] [ No. VI. ] 18 Elizabeth, c. 11.-An Act for the Explanation of the Statutes, intituled, Against Defeating of Dilapidations, and against Leases to be made of Spiritual Promotions in some Respects. [See the next Class.] [ No. VII. ] 27 Elizabeth, c. 4.—An Act against covinous and fraudulent Conveyances. FORASMUCH as not only the Queen's most excellent Majesty, but 27 Eliz. c. 4. also divers of her Highness's good and loving subjects, and bodies 13 Eliz. C. 5. 'politick and corporate, after conveyances obtained or to be obtained, and purchases made or to be made, of lands tenements leases estates No. VII. 27 Eliz. c. 4. 50 Ed. 3. c. 6. c. 3, made to deceive and hereditaments, for money or other good considerations, may have ⚫ incur and receive great loss and prejudice by reason of fraudulent and covinous conveyances estates gifts grants charges and limitations of ' uses heretofore made, or hereafter to be made of in or out of lands tenements or hereditaments so purchased or to be purchased; which said gifts grants charges estates uses and conveyances were, or hereafter shall be meant and intended by the parties that so make the same to be fraudulent and covinous, of purpose and intent to deceive such as have purchased or shall purchase the same; or else by the secret intent of the parties the same be to their own proper use, and at their free disposition, coloured nevertheless by a feined countenance and shew of words and sentences, as though the same were made bona fide for good causes, and upon just and lawful considerations :' II. For remedy of which inconveniences, and for the avoiding of such 2 R. 2. stat. 2. fraudulent feined and covinous conveyances gifts grants charges uses and estates, and for the maintenance of upright and just dealing in the purchasing of lands tenements and hereditaments; Be it ordained and enacted by the authority of this present Parliament, That all and every conveyance grant charge lease estate incumbrance and limitation of use or uses of in or out of any lands tenements or other hereditaments whatsoever, had or made any time heretofore sithence the beginning of the Queen's Majesty's reign that now is, or at any time hereafter to be had or made, for the intent and of purpose to defraud and deceive such person or persons, bodies politick or corporate, as have purchased or shall afterwards purchase in fee-simple fee-tail for life lives or years, the same lands tenements and hereditaments, or any part or parcel thereof, so formerly conveyed granted leased charged incumbered or limited in use, or to defraud and deceive such as have or shall purchase any rent profit or commodity in or out of the same, or any part thereof, shall be deemed and taken only as against that person and persons, bodies politick and corporate, his and their heirs successors executors administrators and assigns, and against all and every other person and persons lawfully having or claiming by from or under them, or any of them, which have purchased or shall hereafter so purchase for money or other good consideration the same lands tenements or hereditaments, or any part or Vin. V. 13-526. parcel thereof, or any rent profit or commodity in or out of the same, to be utterly void frustrate and of none effect; any pretence colour feined consideration or expressing of any use or uses to the contrary notwithstanding. 1 Roll. 167. 3 Co. 80. Cok. Entr. 677. The Penalty of the parties to Fraudulent Conveyances, who do avow hte same. Conveyances made upon III. And be it further enacted by the authority aforesaid, That all and every the parties to such feined covinous and fraudulent gifts grants leases charges or conveyances before expressed, or being privy and knowing of the same or any of them, which after the twentieth day of April next coming shall wittingly and willingly put in ure avow maintain justify or defend the same or any of them, as true simple and done, had or made bona fide, or upon good consideration, to the disturbance or hinderance of the said purchaser or purchasers, lessees or grantees, or of or to the disturbance or hinderance of their heirs successors executors administrators or assigns, or such as have or shall lawfully claim any thing by from or under them, or any of them, shall incur the penalty and forfeiture of one year's value of the said lands tenements and hereditaments so purchased or charged: the one moiety whereof to be to the Queen's Majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feined and fraudulent gift grant lease conveyance incumbrance or limitation of use, to be recovered in any of the Queen's courts of record, by action of debt bill plaint or information, wherein no essoin protection or wager of law shall be admitted for the defendant or defendants; and also being thereof lawfully convicted, shall suffer imprisonment for one half year, without bail or mainprize. IV. Provided also, and be it enacted by the authority aforesaid, That this Act or any thing therein contained shall not extend or be construed good considera- to impeach defeat make void or frustrate any conveyance assignment of tions, and bona fide. Goldsb. 118. pl. 2. 2 Roll. 305. 3 Co. 83. lease, assurance, grant, charge, lease, estate, interest, or limitation of use or uses, of, in, to, or out of any lands tenements or hereditaments heretofore at any time had or made, or hereafter to be had or made upon or for good consideration, and bona fide to any person or persons, bodies politic or coporate; any thing before mentioned to the contrary hereof notwithstanding. V. And be it further enacted by the authority aforesaid, That if any person or persons have heretofore sithence the beginning of the Queen's Majesty's reign that now is, made, or hereafter shall make any conveyance, gift, grant, demise, charge, limitation of use or uses, or assurance of in or out of any lands tenements or hereditaments, with any clause, provision, article, or condition of revocation determination or alteration, at his or their will or pleasure, of such conveyance, assurance, grants, limitations of uses, or estates, of in or out of the said lands tenements or hereditaments, or of in or out of any part or parcel of them, contained or mentioned in any writing deed er indenture of such assurance, conveyance, grant, or gift; and after such conveyance, grant, gift, demise, charge, limitation of uses or assurance so made or had, shall or do bargain, sell, demise, grant, convey, or charge, the same lands tenements or hereditaments, or any part or parcel thereof, to any person or persons, bodies politic and corporate, for money or other good consideration paid or given (the said first conveyance, assurance, gift, grant, demise, charge or limitation not by him or them revoked made void or altered, according to the power and authority reserved or expressed unto him or them in and by the said secret conveyance, assurance, gift or grant,) That then the said former conveyance, assurance, gift, demise, and grant, as touching the said lands tenements and hereditaments, so after bargained, sold, conveyed, demised, or charged, against the said bargainees, vendees, lessees, grantees, and every of them, their heirs, successors, executors, administrators, and assigns, and against all and every person and persons which have shall or may lawfully claim any thing by from or under them or any of them, shall be deemed taken and adjudged to be void frustrate and of none effect, by virtue and force of this present Act. VI. Provided nevertheless, That no lawful mortgage made or to be made bona fide, and without fraud or covin, upon good consideration, shall be impeached or impaired by force of this Act, but shall stand in the like force and effect as the same should have done if this Act had never been had or made; any thing in this Act to the contrary in anywise notwithstanding. VII. And be it further enacted by the authority aforesaid, That all the whole tenor and contents of all statutes merchant and statutes of the staple hereafter to be knowledged, shall within six months next after such knowledging be entered in the office of the clerk of recognizances, taken according to the statute made in the three-and-twentieth year of the reign of the late King Henry the Eighth, by the showing forth of the said statute merchant or statute staple so knowledged unto the said clerk; which said clerk of the recognizances shall enter or cause to be entered the same statutes into a book for that purpose to be provided and safely kept by him, taking eightpence and no more for every such entry. VIII. And be it further enacted, that if the party to whom any such statute merchant or of the staple shall be knowledged, his executors or administrators do or shall, not within four months next after the knowledging of any such statute, bring and deliver or cause to be brought and delivered unto the said clerk, or his deputy or deputies for the time being, all and every such statute and statutes as shall be so knowledged to him or to his use, whereby and to the intent that the said clerk, his deputy or deputies, may take and enter a true copy thereof; that then every such statute merchant and of the staple not so entered shall be void frustrate and of none effect against all and every such person and persons, and bodies politic and corporate, their heirs, successors, executors, administrators, and assigns, only, as shall after the knowledging of the said statutes or any of thein purchase for money or other good consi No. VII. 27 Eliz. c. 4. Lands first conveyed with Condition of Revocation, or Alteration, and af.er sold for money or other good considera tion. Cro. Jac. 180. Mortgages lawfully made. Statute Merchant, &c. shall be entered in the Office of the Clerk of Recognizances. 23 H. 8. c. 6. The Statute not entered, void against the Purchaser. deration, the lands tenements or hereditaments which were liable to the same statute merchant or of the staple, or any part or parcel thereof, or any rent lease or profit of or out of the same. IX. And if the said clerk or his deputy or deputies for the time being shall not upon such showing and delivery unto him or them of any statute merchant or of the staple, enter or cause to be entered the same in his said book within the said time of six months, and also endorse upon every such statute so by him entered, the day and year of his said entry, with his or their own name; that then every such clerk failing or defective in that behalf, shall forfeit and lose for every statute merchant and of the staple so brought unto him or them, and not entered and endorsed, or caused to be entered and endorsed as aforesaid, the sum of twenty pounds; the one moiety whereof to be to the Queen's Majesty, her heirs and successors, and the other moiety to him or them that will sue for the same in any of the Queen's courts of record, by action of debt, bill, plaint, or information, wherein no essoin protection or wager of law shall be allowed. X. And be it further enacted by the authority aforesaid, That no clerk of the said recognizances shall or may take, for or in respect of any search to be made for or concerning any statute merchant or of the staple so to be entered as aforesaid, above twopence for one year's search, and so after the rate of twopence for every year and not above, upon pain to forfeit and lose to the party or parties grieved thereby twenty times as much as he shall take contrary to the true meaning of this Act, to be recovered in any of the Queen's Majesty's courts of record, by action of debt, bill, plaint, or information, wherein no protection or wager of law shall be allowed. This Act to continue for the space of ten years, and from thenceforth unto the end of the Parliament then next following. Made perpetual by 39 El. c. 18. § 32. XI. Provided always, That this Act nor any thing therein contained shall extend or be construed to make good any purchase, grant, lease, charge, or profit, of in or out of any lands tenements or hereditaments heretofore made void defeated or undone, by reason of any former conveyance grant or assurance, so as the party or parties or their heirs or assigns, which have so defeated or made void the same, were in actual possession the first day of this present Parliament, of or in the said lands tenements or hereditaments, whereof or out of which any such purchase, graut, lease, charge, or profit was made. XII. Provided that this Act nor any thing therein contained, shall extend in any sort to restrain or impair the jurisdiction power or authority of the Court of Star-Chamber. Note to the Statutes on Fraudulent Conveyances. § 1. The Statutes 13 and 27 Eliz. have been fully commented upon by Mr. Roberts in an express treatise respecting them, of which the editor has fully availed himself in the view which is taken of the subject in the present note, although very materially differing from that gentleman in many of his ideas upon the subject. The Statutes in question so far as they relate to actual intentional fraud, may, perhaps, be considered as little more than declaratory of the common law, but their operation extends to several cases in which dispositions, unobjectionable in themselves, are rendered invalid in consequence of the prejudice which third persons might receive by allowing their validity: and the term fraudulent, as used in the statutes, and in the cases which have been decided upon their construction, is in general intended to denote no more than an invalidity in certain dispositions, arising from the insufficiency of their consideration, or from other incidental circumstances, in consequence of which they are not allowed to operate in prejudice of other interests, which the statutes were particularly intended to protect, and not to express the immorality of intention, which is understood in the more general and popular signification of the expression. The kind of fraud, which is the object of the statutes, may therefore, in respect to the original disposition, be commonly expressed by the term voluntary, which, although not used in the statutes, is of general occurrence in the cases that have been decided respecting their operation. The statute 13 Eliz. is chiefly for the protection of creditors, whose claims do not immediately regard the particular property which is the subject of the disposition impeached as invalid, but who have a general right to obtain satisfaction by means of such property, in respect of the personal obligations of the party making the disposition. The statute 27 Eliz. is for the protection of purchasers whose rights have a direct and immediate relation to the specific subject disposed of or affected by the previous disposition impeached as deficient in legal validity-and the relief afforded by this statute is, in some cases, more extensive than that which results from the preceding one. 2. In the following view of the subject, I shall first endeavour to trace the Division of the operation of the statutes as they affect real estates, or real and personal estates Subject. equally, reserving the consideration of the law peculiarly affecting the disposition of personal property for a distinct and subsequent examination. In this distribution, real estates are adverted to generally, as comprising all rights in land, although constituting personal property only, in respect to the degree of interest---the substantial distinction between the respective kinds of property, as connected with the present discussion, being, that all interests in real estates, although only amounting to chattels in regard to property, are regulated by actual title, whereas the operation of the law, upon mere personal or moveable property, is more particularly determined by the apparent and ostensible possession. The invalidity of the dispositions affected by the statutes relates, either I. To the interests intended to be protected, comprising, 1st, Creditors and others who are entitled to the benefit of the statute 13 Éliz.---2d, Purchasers who are protected by 27 Eliz.; or, II. To the nature and character of dispositions which are impeached as fradulent, on account of their being deficient in the qualities that are requisite for their support in opposition to the respective interests which are the object of protection ---and which will be designated by the term of voluntary settlements, reserving (otherwise than incidentally) to a future period the consideration of the circumstances to which that term may be properly applied. §3. I. It is perfectly evident that a voluntary settlement is void so far as it affects Of Settlements the rights of creditors existing as such at the time of making it.-With respect to sub- void or othersequent creditors, the validity of the settlement depends upon the fact of the party wise, as against being indebted at the time. In Lord Townsend v. Wyndham, 2 Vesey, 1. 10. Creditors. Lord Hardwicke said, "there is no case where a person indebted makes a conveyance for the benefit of a child without valuable consideration, and dying indebted afterwards, that that shall take place; but it shall be considered as a part of his estate for the benefit of his creditors;" and in Stephen v. Clive, 2 Bro. Ch. 90. Lord Kenyon, as Master of the Rolls, relying principally upon the above observations of Lord Hardwicke, held, 1. That a settlement after marriage in favour of a wife and children by a person not indebted at the time, was good against subsequent creditors, and not within the 13 Eliz.; and, 2. That although the settler was indebted, yet if the debt were secured by a mortgage, the settlement was good. In Lush v. Wilkinson, 5 Ves. 384, a subsequent creditor charged insolvency, which was denied; the defendant (the wife) went into evidence to shew that her husband had been in good circumstances. No evidence was produced by the plaintiff;-and an account and enquiry being asked on his behalf, the Master of the Rolls (Lord Alvanley) said, "You appear as a subsequent creditor, and desire an account in order to invalidate this settlement, by proving prior debts. I have a great doubt whether you have a right to come without proving any one antecedent debt. A single debt will not do. Every man must be indebted for the common bills of his house, though he pays them every week. It must depend upon this, whether he was in insolvent circumstances at the time."-The bill was dismissed with costs, with liberty to file another bill.-See also to the same effect, Russell v. Hammond, 1 Atk. 13. Walker v. Burrows, 1 Atk. 93. (decided upon the more extensive construction of st. 21 Ja. I. with respect to bsnk. ruptcy) Middlecome v. Marlow, 2 Atk. 520. In the before-mentioned case of Lord Townsend v. Wyndham, Lord Hardwicke (after adverting to the difference between statute 27 Eliz. as to subsequent purchasers, and 13 Eliz. as to subsequent creditors) said, "If there is a voluntary conveyance by one not indebted at the time, though he afterwards becomes indebted, if that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good; but if any mark of fraud collusion or intent to deceive subsequent creditors appears, that will make it void, otherwise not, but it will stand, though afterwards he becomes indebted." In Stileman v. Ashdown, 2 Atk. 477, Lord Hardwicke decreed satisfaction to creditors from estates purchased by the father in the joint names of himself and his |